Jocelyn Downie and Jennifer Chandler | April 5, 2018
Medical assistance in dying has been legal in Canada for nearly two years, but confusion around how to interpret the legislation persists.
When the federal government passed Bill C-14 in June 2016, reactions to the law were immediate and vociferous. Some felt that it was too permissive, while others felt that it was too restrictive. It was widely noted that the meaning of some of the legislation’s key terms and phrases was unclear. Questions were raised about specific terms, such as “intolerable suffering” or “an advanced state of irreversible decline.” Perhaps most controversially, does the “reasonably foreseeable natural death” criterion mean that eligibility is limited to those with fatal conditions or who are “terminally ill” or “at the end of life” or whose death is “in the not too distant future”?
Ongoing uncertainty around these terms is putting Canadians at risk in a number of ways. Too narrow an interpretation could mean people who should have access may be denied MAID; too broad an interpretation could mean some people may be given access who should not. Indeed, two persons in the same circumstances may be treated differently simply because their MAID assessors and providers interpret the law differently.
Other consequences are possible, too. For example, in response to particular interpretations of the law that suggest no other option, some patients may forgo drugs needed for effective pain control and remain in a state of intolerable suffering to keep the necessary level of decision-making capacity to reiterate their request for MAID at the time of administration. In addition, interpretive uncertainty may also raise concerns about potential criminal liability, producing a chilling effect on medical and nurse practitioners’ willingness to provide MAID.
How can we avoid these consequences? Once a piece of legislation is in force, only the courts can definitively interpret it. Unfortunately, seeking clarification through litigation is prohibitively expensive and time consuming. Few people denied access to MAID because of issues of interpretation would be in a position to seek assistance from the courts.
Until the courts step in with definitive interpretations, there are nevertheless steps that can be taken to mitigate the problems mentioned above. Indeed, in the shorter term, there are instruments and avenues available to reduce uncertainty and confusion among patients and health care providers. We outline some of them in our recent report for the Institute for Research on Public Policy, where we determine the most defensible interpretations of the legislation, using the tools of statutory interpretation supported by the relevant clinical and other forms of expertise.
We call on those who have the responsibility and authority to provide interpretive guidance to health-care practitioners and patients to adopt, endorse and/or disseminate these proposed interpretations in order to build consensus on the meaning of the terms of the legislation. This is a task that concerns governments, directors of public prosecution and attorneys general, professional regulators, health authorities, professional liability protection providers, professional associations and civil society groups.
In particular, we invite Canadians to join us in calling for:
• The Minister of Justice and Attorney General of Canada to publicly state that the proposed interpretations are consistent (or not inconsistent) with the government’s intentions when crafting the legislation.
• The federal government to reflect the proposed interpretations in an update to the glossary that the Department of Justice posted on the internet to accompany the legislation when it was introduced and in the regulations establishing the federal monitoring system.
• The directors of public prosecution and attorneys general in each province and territory to reflect the proposed interpretations in guidelines for the exercise of prosecutorial discretion in the context of MAID.
Although 1,982 Canadians accessed MAID in the legislation’s first year, confusion remains around some of its key terms and clarity is required. Together we must move the public discussion toward a potential consensus. It is time for those who can help to clarify the meanings to do so.
Jocelyn Downie is a professor at the Schulich School of Law, Faculty of Medicine, and Health Law Institute at Dalhousie University. Jennifer Chandler is a professor in the Centre for Health Law, Policy and Ethics at the Faculty of Law at the University of Ottawa.